The Hon’ble Karnataka High Court has held that the procedure prescribed under the Hague Convention and the country’s regulations needs to be followed in cases of Inter-Country Relative Adoption, which requires the parties to first request the receiving country to communicate a mail to the Indian counterpart under the adoption regulations and within 10 days a certificate and NOC would be issued in this country.
Brief Facts:
The petitioners are a couple, the husband resides in Germany and the wife in India. They adopted a child in India. Upon registration of adoption deed, as required in law, verification was done by the Deputy Commissioner and a certificate of verification was also issued along with the recommendation that adoption of the child being valid necessary action be taken upon the said adoption.
The petitioners then sought issuance of an NOC and a conformity certificate in favour of adoption of the child by presenting it before the District Child Protection Unit. The District Child Protection Unit has not considered the request and has not issued an NOC as also a conformity certificate of adoption. The petitioners therefore have filed a writ of mandamus for issuance of the certificates.
Contentions of the Respondent:
It was argued that inter-country adoption is a product of Hague convention on protection of children and cooperation in respect of inter-country adoption and under articles of the convention, as fructified into regulations, they would require the petitioners to go before the country in which the father resides, communicate a mail to the Indian counterpart under the adoption regulations and within 10 days a certificate and NOC would be issued in this country.
It was further contended that the petitioners cannot claim a right for violation of the procedure quoting any of the instances of hardship, as the process will have to meet the Regulations.
Observations of the Court:
It was observed that the inter country adoption as provided at Hague was to recognize that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding. The convention further recognized that inter- country adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her State of origin. It, therefore, in the best interest of the child with respect to the fundamental rights of the child and to prevent abduction, sale, trafficking of children, articles of convention were drawn in the nature of declaration on social and legal principles relating to protection and welfare of children, with reference to foster placement and adoption Nationally and Internationally.
It was noted that the procedure as prescribed in the Hague Convention and country regulations needs to be followed since both countries are signatories to the Convention. The rules required the petitioners to first request the receiving country to communicate to the other and only then is the NOC issued. No exception can be made in this procedure and has to be compulsorily followed. Since the petitioners did not follow the same, they could not have sought the remedy by writ of mandamus.
Decision of the Court:
Based on the aforementioned analysis, the court dismissed the writ petition.
Case Title: Shri Ajay Kumar and Another vs. Union of India
Coram: Hon’ble Mr. Justice M. Nagaprasanna.
Case No.: Writ Petition No.16681 OF 2023 (GM-RES).
Advocate for the petitioner: Adv. Shri Rohan S.
Advocate for the respondent: Adv. Shri H. Shanthi Bhushan
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